Friday, 24 January 2014

High Speed 2 ~ a little light reading for the weekend

The Supreme Court has handed down judgment in a judicial review of the government's plans for a High Speed Rail link between London, Birmingham and other cities further north. - High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary

There are separate judgments by Lord Carnwath, Lord Reed, Lord Sumption, Lady Hale and a joint judgment by Lords Neuberger and Mance.  The challenges failed.

I hope to take a fuller look at the decision next week.  For the time being, the interested reader might take time to read the full judgment and perhaps those of Ouseley J in the High Court (March 2013) and the Court of Appeal (June 2013).

reference will be required to the Aarhus Convention and to EU Directives - (a) The SEA Directive - 2001/42/EC and (b) the EIA Directive - 2011/92/EU.

EU Directives have to be implemented into national law.  (a) was implemented for ENGLAND by the Environmental Assessment of Plans and Programmes Regulations 2004 and (b) was implemented in English law by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011

Next comes the Command Paper - High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (Cm 8257, 10th January 2012).

The Bill before Parliament is known as a Hybrid Bill and may be read here.  See also my previous post about this Bill.   (Hybrid Bills are explained in the Supreme Court's judgment at paras 57 and 58).

Here is a case which is perhaps not surprising in its outcome.  However, the judgments contain many important observations about the relationship between the law of the European Union and national law as well as the relationship between the courts and Parliament.  On these matters it is well worth reading the posts at Public Law for Everyone and at UK Human Rights blog.

Pargraph 15 of the Supreme Court's judgment gives a summary of the issues before the court:

  1. The issues before this court can be summarised as follows:

  2. i) SEA whether the DNS in the circumstances of HS2 is a "plan or programme" which "sets the framework for development consent" and was "required by administrative provisions" within the meaning of articles 2-3 of Directive 2001/42/EC ("the SEA Directive").
    ii) Aarhus whether if the interpretation of the majority in the Court of Appeal is correct, article 3(2)(a) of the SEA Directive is inconsistent with article 7 of the Aarhus Convention, and if so with what consequences.
    iii) EIA/Hybrid Bill whether the Hybrid Bill procedure as proposed meets the requirements of Directive 2011/92/EU ("the EIA Directive"), taking account in particular that (a) issues of principle will be excluded from the Select Committee stage, and (b) the debate on the Bill at Second and Third Reading will be subject to a Government whip.
    iv) Timing whether the court should intervene at this stage, or whether the court should wait until the Parliamentary process is completed;
    v) CJEU reference whether any of the above questions raise uncertain issues of European law on which a reference should be made to the European court.
    Since the hearing the hybrid bill for Phase 1 has been introduced to Parliament and received its first reading on 25 November 2013. The issues relating to the parliamentary process (iii) and (iv) will be discussed by Lord Reed ...." 

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